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Clinton E-mails: Is the Fix In?

There was an extraordinary report in Tuesday’s Washington Post about the Clinton e-mail investigation. It involved the government’s interview of longtime Clinton consigliere Cheryl Mills. It details how Justice Department attorneys made an agreement with Mills’s attorney to cut off questioning about a key aspect of the case.

Mills, who is a lawyer, was represented at the interview by a lawyer named Beth Wilkinson. As is customary in these situations, the questioning was conducted jointly by FBI agents and Justice Department prosecutors. Yet when things got dicey, it seems the Justice Department prosecutors worked jointly with Ms. Wilkinson to block the FBI from asking about Mills’s collusion with Clinton in the belated provision of thousands of Clinton’s e-mails to State — provided only after nearly 32,000 of those e-mails were deleted.

The Post’s Matt Zapotosky describes the incident this way:Near the beginning of a recent interview, an FBI investigator broached a topic with longtime Hillary Clinton aide Cheryl Mills that her lawyer and the Justice Department had agreed would be off-limits, according to several people familiar with the matter.

Mills and her lawyer left the room — though both returned a short time later — and prosecutors were somewhat taken aback that their FBI colleague had ventured beyond what was anticipated, the people said.The report subsequently elaborates:

The questions that were considered off-limits had to do with the procedure used to produce e-mails to the State Department so they could possibly be released publicly, the people said. Mills, an attorney herself, was not supposed to be asked questions about that — and ultimately never was in the recent interview — because it was considered confidential as an example of attorney-client privilege, the people said.

Though reported matter-of-factly, this is quite amazing.The first remarkable thing to note is that there is a press report at all. This is supposed to have been a law-enforcement interview in a criminal investigation. Those are supposed to be non-public, much like grand-jury proceedings.

You may recall that there are various ongoing Freedom of Information Act (FOIA) lawsuits in which journalists and watchdog groups are seeking access to information about Mrs. Clinton’s improper private e-mail system. While the Obama State Department has been slow-walking disclosures, the Obama Justice Department has been fighting off the FOIA lawsuits by representing to federal judges that allowing information to become public at this time could compromise the FBI’s investigation.

Yet the Post can only have gotten the information published in its report from leaks by the Justice Department. Indeed, Mr. Zapotosky writes that goings-on in the Mills interview were described to the Post “by several people, including U.S. law enforcement officials, who spoke on condition of anonymity because the investigation is ongoing and those involved could face professional consequences for discussing it publicly.”

(Emphasis added.)

Isn’t that special? The “U.S. law enforcement officials” know it is unethical for them to be speaking about what happened in an investigative interview. Do they resolve this ethical “dilemma” by ethically refraining from comment? No, they unethically leak to the press in cowardly anonymity — your government at work.

It is even possible (though by no means certain) that the Post’s pipeline includes a government lawyer who participated in the interview. It is interesting, to say the least, that the report, which heavily relies on anonymous government sources, somehow manages not to reveal the names of the government officials who participated in the events the report describes.

The other preliminary matter worth noting here is that the Post is completely in the tank for Mrs. Clinton and her minions. So what are we to make of the fact that the Obama Justice Department chose the Post to funnel its leak to?The upshot of the Post’s patent partisanship is that we do not learn key details that paper is no doubt in a position to tell us.

The report advises us that “so far, investigators have found scant evidence tying Clinton to criminal wrongdoing” — and how would the Post know that?

In the middle of the report, moreover, readers are invited — in blue italics — to check out another report entitled, “Officials: Scant evidence that Clinton had malicious intent in handling of e-mails.”

Sounds great for her . . . especially since they conveniently fail to tell you that “malicious intent” is not required to prove felonious mishandling of classified information. In fact, gross negligence would do, so if there really is even “scant” evidence of malicious intent, that suggests it would be fairly easy to prove the crime.Details, details. In any event, the upshot of the Post’s patent partisanship is that we do not learn key details that paper is no doubt in a position to tell us (especially since the article makes clear that Ms. Wilkinson, Mills’s lawyer, is also a very willing source).

For example, did Mills get immunity?

The report states that “investigators consider Mills . . . to be a cooperative witness.” Again, the Post can know that only if its Justice Department sources are telling it so.

But more to the point, as I’ve previously laid out in some detail, there are all kinds of “cooperative witnesses.” Some, for example, are mere innocent observers who have nothing to do with potentially criminal activity and unconditionally cooperate with law enforcement because they are not suspects.

Others may be accomplices in the potentially criminal activity; they generally cooperate only if promised immunity, or at least a reduction of criminal charges. What is Mills’s status? Were there conditions placed on her interview? Would she really voluntarily cooperate, no strings attached, with government officials who have prosecutorial authority? After all, Mills has a record of being uncooperative even under circumstances where government investigators were not in a position to file criminal charges against her.

For example, earlier this year, a State Department inspector general (IG) issued a report regarding the department’s appalling record of non-compliance with FOIA during Clinton’s tenure. It noted that Mills was well aware that Clinton’s e-mails circumvented State’s filing system and therefore were not searched in order to determine whether some were responsive to FOIA requests.

This was a violation of federal law, which requires each government agency to undertake a search that is “reasonably calculated to uncover all relevant documents.” (See Report at p. 8 & n.29 and pp. 14-15.)

Mills not only failed to ensure that such a search was done; she knowingly allowed the State Department to represent — falsely, it turned out — that it possessed no responsive documents.

We now know that, when IG investigators attempted to question Mills to ascertain why she did that, she told them, through her lawyer, that she refused to speak with them.